Madison County IL Archives Court.....Rountree, Vs. Stuart 1819-31
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 4, 2008, 11:07 pm

Source: Reports Of Cases Illinois
Written: 1819-31

NOVEMBER TERM, 1823.


Jesse Rountree, Plaintiff in Error, v. William Stuart, Defendant in Error.

ERROR TO MADISON.

Where a party amends his narr. by setting out the bond on which suit is 
brought as the statute requires, it is error in the plaintiff to take judgment 
at the same term if a continuance is prayed for by defendant.

Where a statute declares that in a certain case a continuance shall be 
granted, it is error in the court to refuse it.


Opinion of the Court by Justice Reynolds. Rountree filed a demurrer to the 
declaration of Stuart in the court below—the demurrer was sustained. The 
plaintiff amended his declaration by setting out the original bond. The 
question then presents itself—ought the cause to have been continued under the 
third section of the "act regulating the practice at law and in chancery?"

In this case it is not necessary to decide the question, if the continuance or 
non-continuance of a cause be such a judgment upon which a writ of error will 
lie, as the statute in this case is peremptory. It requires the declaration 
and writing on which the action is founded to be filed ten days before the 
return of the writ, or if not the case shall be continued.

This is positive. There is some reason in this. The party has not then ten 
days before the court to prepare for his defense. The plaintiff erred in 
taking judgment at the same term at which he got leave to amend his 
declaration. Therefore the judgment ought to be reversed, but as the court is 
divided in opinion, it is therefore affirmed. (1)

Judges Browne and Wilson, not hearing the argument, gave no opinion.

-----------------
(1) This decision has frequently been humorously criticised on account of the 
last expression in the opinion: "Therefore the judgment ought to be reversed: 
but as the court is divided in opinion, it is therefore affirmed." This, 
perhaps, is not the most classical expression that might have been used, but 
it amounts to simply this—that in the opinion of Justice Reynolds the decision 
of the court below ought to be reversed; but as the members of the court who 
were present were equally divided, it follows that it must be affirmed. It is 
not a decision of the court; and possibly ought not to have been imported by 
Judge Breese. Four Judges at that time composed the court, only two of whom 
were present, and they differed in opinion; but still there can be very little 
doubt that the views of the judge, whose opinion it was, were in substance 
correct. The case certainly ought to have been continued. See note to Crane v. 
Graves, ante, p. 66. Scott v. Cromwell, ante, p. 25.

Additional Comments:
Reports of Cases at Common Law and in Chancery, Argued and Determined in the 
Supreme Court of the State of Illinois, From its First Organization in 1819, 
to the End of December Term, 1831. By Sidney Breese, Counsellor at Law. Second 
Edition, with Additional Notes, By Edwin Beecher. Chicago: Callaghan & 
Company, 1877.

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